Industry Goes to the Well . . . to dilute clean-water regulations

Water, water, everywhere,
Nor any drop to drink.
--"The Rime of the Ancient Mariner"

Arizona's got water. It's tucked away beneath the ground, in reserves called aquifers. But when we need it, will it be fit to drink?

In large part, that's up to the Arizona Legislature.
Environmentalists, government bureaucrats, big business and, yes, Super Lobbyists have grappled with that question for years. In 1986, a coalition of representatives from all these interests came up with--and the Arizona Legislature passed--a sweeping law that created the Aquifer Protection Permit Program, designed to keep big business, especially the mining and high-tech industries, from dumping toxic chemicals into the state's groundwater supply, which accounts for about 40 percent of the state's water consumption. This happened only after groundwater pollution became so pervasive that citizens threatened to launch an initiative and write the law themselves.

But the ink was barely dry on then-governor Bruce Babbitt's signature before the Super Lobbyists began to chip away at the new groundwater protection law.

Last year, they won an exemption for sand and gravel companies. This year, the Super Lobbyists want to pass a law that would potentially exempt more industries from regulation.

Dave Kimball, who helped to negotiate the 1986 law, is the leader of the pack, on behalf of his clients, including the Arizona Rock Products Association and the Arizona Chamber of Commerce. The environmentalists, who haven't been asked for an opinion since 1986, it seems, sit on the sidelines and shake their heads. And this couldn't happen at a worse time, since Arizona is now contemplating increasing the amount of water it stores underground, through water banking. Water banking, its supporters say, would allow Arizona to hold on to precious Colorado River water the state can't use now, but will need in the future.

Used to be, the Super Lobbyists would use the stealth approach, quietly writing a bill and getting a friendly member to introduce it, hoping that no one would notice as it wended its way through the process. But in recent years, they've had an unlikely ally: the Department of Environmental Quality, which is supposed to be enforcing rules, not fighting for their dilution.

"Every year, it seems like, Kimball comes in with some weakening amendment," says David Baron of the Arizona Center for Law in the Public Interest, who also worked on the 1986 law.

"I don't think anybody expected that the law would remain in stone," Baron adds. "But there was sort of a gentleperson's understanding that if people were going to change the law, they would sit down with the same group of interests and try to work it out. And these guys never did that. They just waltzed in there every year with these secret bills. . . . Now they don't even bother to do that. They go to DEQ first, get DEQ to sign off and then they introduce them. And they never talk to the environmental community about them."

Why bother, when you're a Super Lobbyist?

Sandy Bahr, the Sierra Club's "conservation outreach coordinator" (read: lobbyist with little power), is often alone at the Capitol in her battles to preserve the Aquifer Protection Permit Program, the centerpiece of the 1986 law. The program requires businesses to get permits from DEQ before dumping chemicals into the state's groundwater.

Last year was a good example. The sand and gravel industry won a battle it had waged for years, finally exempting itself from the permitting process, even though it dumps potentially toxic substances into Arizona's waterways. The miners' argument: that nonmetallic mineral quarrying--crushing and screening conducted in "ephemeral" waters (streams that do not run year-round)--does not threaten the state's environment and groundwater.

Bahr says that's just not so, that sediment left over from the extraction process threatens wildlife along the waterways. If the sand and gravel industry isn't polluting the water, the Sierra Club asks, why are their representatives so busy trying to avoid regulation?

As she often does, Bahr prepared a memo outlining her organization's concerns, and distributed it to legislators. She mobilized her membership--had them call and write and beg their representatives to vote against the bill.

Bahr and Representative Andy Nichols, a Tucson Democrat, even appealed to the U.S. Environmental Protection Agency for help. The EPA agreed with the Sierra Club's position, as reflected in an April 20 letter, from Catherine Kuhlman, associate director of the water division of EPA's Region IX in San Francisco.

The bill passed anyway. Rusty Bowers, a Mesa Republican and chairman of the Senate Natural Resources and Agriculture Committee, tacked it to a bill that authorized DEQ's continued existence.

(The irony is that dumping by sand and gravel companies will still be regulated--but by the feds, instead of the state. The state permitting process is done in conjunction with standards established by the federal Clean Water Act. If the state doesn't regulate the industry, the federal government will.)

"It just epitomizes the hypocrisy of these people [legislators]," Baron says. "I mean, they're always harping about states' rights and state control."

Although the bill passed in the end, Bahr must have had some impact--she raised the ire of lobbyists for the sand and gravel companies. After a hearing one day, a man introduced himself to her as Sam Aubrey, a lobbyist for the Arizona Rock Products Association.

Bahr recalls, "He was really pissed off, basically. He was like, 'Why are you opposing our bill? Why didn't you come to us?'"

Her response: "Last I heard, that was Senator Bowers' bill."
"There's no doubt about it, that a lot of the bill-writing comes from lobbyists and particularly the more powerful lobbies," Bahr says. "And then, of course, they have the audacity to complain when we oppose something that nobody ever asked us about, and of course we would oppose because it's less protective of the environment, and that's our job."

Last summer, long before some legislators had begun toiling on reelection campaigns, Super Lobbyist Dave Kimball released his latest laundry list of concerns about the Aquifer Protection Permit Program. His modus operandi: threaten DEQ with legislation unless the agency buckles to his requests and takes care of them through the less public rule-making process.

Rumored Kimball bills for 1999 would delay permitting requirements for sites including old mines and eliminate "narrative standards" from the permitting process. Aubrey and Kimball did not return calls from New Times.

The narrative standard provision of the 1986 water quality law is an important one, says David Baron, because although identifiable chemicals have already been assigned numeric limits that determine their toxicity when dumped into the water, there are many more chemicals that have not been assigned limits. Thus, the law gives DEQ the authority to assess a chemical and assign it a number. Kimball and other industry representatives have charged that DEQ makes unfair assessments. But instead of addressing individual concerns, they want to significantly limit DEQ's ability to set strict limits.

Baron thinks this is a terrible idea. "If somebody comes along with some exotic, highly toxic chemical, the only recourse of DEQ is to spend two or three years in rule-making to come up with a standard that these guys will take to court," he says. "So essentially, they'll never be regulated."

It is impossible to know for sure what environmental bills will pop up in the next session. Guessing what may be drafted and introduced becomes a game for the players, who in this case include environmentalists, business representatives and bureaucrats from DEQ and that agency's legal counsel, the Attorney General's Office.

An October 26 memo from the AG's Office details DEQ's legislative priorities for the upcoming session, and also includes the Arizona Association of Industries' wish list of a dozen or so items. Included on the industry list is the dreaded "environmental audit bill," which allows polluters to self-police while exempting them from prosecution. The bill made then-DEQ director Russell Rhoades scores of enemies when he announced his support of it in 1996. Even then-governor Fife Symington--no poster boy for the green movement--found the bill too onerous, and vetoed it.

Some speculate that Rhoades' support of the audit bill was a nail in his coffin; he resigned recently, after months of speculation that Governor Jane Dee Hull wanted him out. Now everyone--environmentalists, bureaucrats, the regulated community--is waiting to hear whom Hull appoints in his place. That, Bahr says, will be a signal as to whether she's green or not. The environmentalists were horrified when Hull signed the sand and gravel bill last year, and haven't been thrilled, in general, with her record on the environment.

But few think Hull would back the environmental audit bill, which has also been derided as the "Polluter Protection Act."

And even the legislators most willing to do the Super Lobbyists' bidding may balk at the thought of introducing the controversial measure this session. The AG memo offers it up as an industry priority, but with a caveat: "An environmental audit self-evaluation privilege which would be introduced if there are champions in the Legislature to support it."

The Players
And their contributions to statewide and legislative candidates

In favor of changes in groundwater protection laws . . .

Super Lobbyist David Kimball, Gallagher and Kennedy. Kimball gave $1,600. Gallagher and Kennedy gave $7,175. The firm's clients and their contributions: Arizona Chamber of Commerce, employees: $3,837; Arizona Rock Products Association, PAC: $16,325; employees, $925.

Arizona Association of Industries. Its PAC gave $2,310; employees another $1,945.

The mining industry. Mining PACs gave $58,260; employees of mining companies gave more than $18,000.

Against changes in groundwater protection laws . . .

Sandy Bahr, Sierra Club. She gave $85. The Sierra Club's PAC gave $300. Other "green" PACs, including the Arizona League of Conservation Voters, gave $3,000.


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